Scottish Court of Session Decisions

EXTRA DIVISION, INNER HOUSE, COURT OF SESSION

[2015] CSIH 10

XA103/14

Lady Paton

Lord Malcolm

Lord McGhie

OPINION OF THE COURT

delivered by LADY PATON

in the cause

H

Pursuer and Appellant;

against

H

Defender and Respondent:

Act:  Party

Alt:  Hayhow, Advocate;  Drummond Miller LLP

30 January 2015

Introduction

[1]        The parties were married on 13 March 1999.  They have four children:  a son A, born on 18 March 2001;  a daughter B, born on 23 October 2002;  a son C, born on 15 November 2003;  and a daughter D, born on 3 December 2006.

[2]        The parties’ relationship deteriorated.  There were separations and reconciliations.  On 12 February 2010 the pursuer raised an action in Aberdeen Sheriff Court, seeking inter alia divorce, a residence order in terms of section 11(2)(c) of the Children (Scotland) Act 1995 providing that the four children live with him, and a specific issue order in terms of section 11(2)(e) that the children attend Milltimber Primary School.

[3]        In 2011, the children’s panel also became involved.

[4]        There were many hearings and interviews, in particular child welfare hearings in the sheriff court; appearances before the children’s panel; involvement with the local social work department;  interviews with the children by social workers, court reporters, and a clinical psychologist;  and also the involvement of the local police on some occasions when there were incidents involving the family or difficulty over contact with the children.

[5]        Various arrangements for residence and contact, including supervised contact, were attempted.  For example, prior to the raising of the sheriff court action -

“ …[i]n February 2009, a flat near the family home was rented with a view to each of Dr and Mrs H staying in the family home on alternate weeks, while the other parent stayed in the nearby flat.  In June 2009, the couple commenced living together in the family home.  Dr H’s position is that at this time the couple were reconciled as husband and wife and Mrs H’s position is that the childcare arrangement was not working and she hoped to be rehoused in her own right, which would not have been possible if the couple had two homes.  She denies that the parties resumed cohabitation as husband and wife … [paragraph 4 of the report dated 29 October 2014 (see paragraph [10] below)]”

[6]        Following upon the raising of the sheriff court action, Sheriff Harris granted an interim shared residence order on 4 February 2011.  The children were to live with the pursuer in his house in Milltimber for one week, and then with the defender in her house in Banchory for the following week.  The arrangement was to be repeated over subsequent weeks.  The pursuer considered the arrangement a success, and currently seeks reinstatement of the shared residence order – certainly in relation to the three younger children, if not in relation to the oldest child A.  However others involved did not consider the shared residence order to be a success.  On 30 September 2011 the order was recalled by Sheriff Garden, and an interim order awarding residence of all four children to the defender was pronounced.  All four children then lived with the defender.

[7]        At some stage in early or mid-2012, A moved to live with his father, the pursuer, in Milltimber.  He attended Milltimber Primary School and thereafter Cults Academy.  The three younger children remained living with their mother, the defender, in Banchory.  They attend Banchory Primary School and Banchory Academy.

[8]        On 16 August 2013 a lengthy hearing took place before Sheriff Garden.  The sheriff had the benefit of two bar reports dated 1 October 2012 and 24 July 2013, and four social work reports.  On 11 September 2013 the sheriff awarded residence relating to A to the pursuer in Milltimber;  and residence relating to the three younger children to the defender in Banchory.  In the note to his interlocutor, the sheriff recorded his view that the children needed stability and certainty about their future (paragraph [11]);  that the residence orders “should now be made final”, observing that “interim orders have simply fuelled the levels of uncertainty which have clearly damaged the children” (paragraph [16]);  and that he had not dealt with “the issue of contact as that was not discussed in detail” (paragraph [17]).  He noted further:

“ … I understand that Mrs H is prepared to offer generous contact arrangements for the three youngest children and consider and hope that as a first step towards a better approach to the welfare of the children both parents could now agree on appropriate reciprocal contact arrangements …”

[9]        The pursuer marked an appeal to the Sheriff Principal against that part of the interlocutor relating to the three younger children.  The Sheriff Principal, when dealing with the matter, noted that the pursuer had not sought leave to appeal.  Nevertheless, as the welfare of children was involved, he heard submissions from the pursuer in person and from the defender’s solicitor.  On 29 May 2014 the Sheriff Principal refused the appeal.  In his judgment he explains that, on reconsidering the authorities, it was clear that an appeal without leave was incompetent.  He therefore refused the appeal as incompetent.  However he also dealt with the grounds of appeal presented by the pursuer.  He found no merit in these grounds, for the reasons he gives.

[10]      The pursuer appealed to the Court of Session.  On 1 August 2014, urgent disposal was granted and a hearing fixed.  On 17 September 2014, the court granted interim interdict prohibiting the defender from taking the children out of Scotland, and also made an order relating to the children’s passports.  Further a quam primum report was ordered from a member of the bar, Ms Loudon, Advocate.  That report, dated 29 October 2014, was available for the appeal hearing on 16 December 2014.

Competence of the appeal

[11]      The Sheriff Courts (Scotland) Act 1907 provides inter alia:

“3.  Interpretation

In construing this Act (unless where the context is repugnant to such construction) –

…(h) ‘Final judgment’ means an interlocutor which, by itself, or taken along with previous interlocutors, disposes of the subject-matter of the cause, notwithstanding that judgment may not have been pronounced on every question raised, and that expenses found due may not have been modified, taxed, or decerned for …

27.  Appeal to Sheriff Principal

Subject to the provisions of this Act an appeal to the sheriff principal shall be competent against all final judgments of the sheriff and also against interlocutors –

…(F) Against which the sheriff either ex proprio motu or on the motion of any party grants leave to appeal …

28.  Appeal to Court of Session

(1) Subject to the provisions of this Act, it shall be competent to appeal to the Court of Session against a judgment either of a sheriff principal or sheriff if the interlocutor appealed against is a final judgment or is an interlocutor –

… (d) Against which the sheriff principal or sheriff either ex proprio motu or on the motion of any party, grants leave to appeal …”

[12]      Sheriff Garden was, in our view, entitled to describe his order of 11 September 2013 relating to residence as “final”:  cf dicta in Hartnett v Hartnett 1997 SCLR 525, at page 529B-D;  Morgan v Morgan 1998 SCLR 681, at page 683B-C;  McCulloch v Riach 1999 SCLR 159, at pages 162F-163D.  In so doing, he indicated that he had dealt with the question of residence on a final (rather than an interim) basis, and was unlikely to be persuaded to vary that order unless there was a change of circumstances, always bearing in mind that, as Lord Hope explained in Sanderson v McManus 1997 SC (HL) 55, at page 58E:

“ … It should be noted that, except in the case of an adoption order, no decision about parental rights is a final decision, because the child’s welfare remains open to further consideration by the court throughout his childhood.”

[13]      Nevertheless the fact that the sheriff described his order as “final” did not, in our view, result in its qualifying as a “final judgment or interlocutor” as defined in sections 3, 27, and 28 of the 1907 Act, as the subject-matter of the cause has not been disposed of.  In particular, issues of divorce and contact remain outstanding.  Relevant authorities include Macphail, Sheriff Court Practice (3^rd ed) paragraphs 18.33 to 18.35;  Jardine v Magistrates of Moffat 1907 SC 1065;  and the dicta referred to in Morgan above.

[14]      It is clear therefore that the pursuer required leave from the sheriff to appeal against his interlocutor of 11 September 2013.  Without such leave, the appeal was incompetent.  No leave was in fact sought from or granted by the sheriff.  Accordingly we agree with the Sheriff Principal’s conclusion that the appeal fell to be dismissed as incompetent.  We refuse the appeal to the Court of Session for that reason.

Merits of the appeal

[15]      As Lord President Hope explained in Sanderson v McManus 1997 SC (HL) 55 at pages 57H-58E:

“The resolution of a dispute about access [now “contact”] is in almost every case a matter for the court of first instance.  So much depends on the facts and on the impression which is made on the judge by the parties to the dispute when they come to give evidence.  An appeal court which has not had the advantage of seeing and hearing the witnesses will always be slow to disturb the decision which has been taken on the facts by the judge.  The rules defining the proper approach of an appellate court to the consideration of a decision on fact by the court of first instance were described by Lord Macmillan in Thomas v Thomas at p59.  That was an action of divorce, but what he said in that case applies with just as much force to disputes about access.  If there is a succession of appeals, the passage of time is likely also to give rise to difficulty.  Decisions in these cases are taken in the light of the facts and circumstances as presented to the judge at the time of the proof.  But circumstances change as the child gets older, and the parties to the dispute may change their ways and form new relationships.  The greater the interval between the taking of the evidence from the witnesses and the hearing of each appeal the more unsatisfactory the situation is likely to become.  The stronger will be the argument that the appellate court should not disturb the status quo, as can be seen from the decision of your Lordships’ House in Brixey v Linas.  This is especially so where, as in this case, the effect of the order which was made at first instance was to refuse access.  The child who is at the centre of this dispute was four years old when he last saw the pursuer.  He is now aged seven, and he will be eight years old in a few months’ time.  It would not be right for your Lordships, if minded to allow this appeal, simply to reverse the decision of the judge at first instance and order that the pursuer be awarded access to the child.  At the very least some further inquiry would be necessary.  This may bring new facts to light which may show that, whatever the position may have been four years ago, it would not now be in the interests of the child that the pursuer should be awarded access.  So in almost every such case it is likely to be preferable, rather than pursuing a succession of appeals through the courts, to make a fresh application for access to the judge at first instance on the ground of a change in circumstances.  It should be noted that, except in the case of an adoption order, no decision about parental rights is a final decision, because the child’s welfare remains open to further consideration by the court throughout his childhood …”

[16]      As already noted, the Sheriff Principal, despite his conclusion that the appeal was incompetent, nevertheless dealt with each of the pursuer’s grounds of appeal, taking the view that the welfare of the children was involved.  Given the observations of Lord President Hope in Sanderson v McManus, cit sup, we do not consider it appropriate for this court to enter into the merits of the Sheriff Principal’s responses to the pursuer’s grounds of appeal, although we would observe that we have been unable to detect any error on his part.  In the result, we refuse the appeal before us for these reasons also.

Addendum

[17]      We make one further observation.  We agree with the Sheriff Principal that, where the welfare and safety of children are at issue, there may be very exceptional circumstances where it would be inappropriate to allow procedural matters to stand in the way of essential decision-making.  However this, in our opinion, is not such a case.  The report by Ms Loudon dated 29 October 2014 gives a helpful outline of the children’s present circumstances.  While there are matters still outstanding for the decision of the sheriff (see paragraph [13] above), we are satisfied that the children are meantime safe, in good health, comfortably-housed, attending school, seeing their friends, and pursuing their various interests.  In our opinion this case should be remitted back to the sheriff court for resolution of the outstanding matters, in particular the issues of contact and divorce.  So far as contact is concerned, we note that there is extant an interim order dated 25 May 2012, specifying particular arrangements for contact with the children.  Nevertheless we consider that circumstances have materially changed since that date, as (i) on 11 September 2013 Sheriff Garden set out the current circumstances of the parties and the children, considered and ruled on residence, but expressly excluded any ruling on contact for the reasons he gave;  and (ii) Ms Loudon’s report dated 29 October 2014 makes it clear, on the basis of her inquiries and the information obtained, that the issue of contact requires a complete re-appraisal and re-assessment by the sheriff.  In our view the interlocutor of 25 May 2012 must now be regarded as having been overtaken by changing circumstances and therefore not an interlocutor which, if not obeyed, might result in the serious consequences normally attaching to non-compliance with a court order.  The whole question of contact should now be reconsidered by the sheriff court, taking into account the information contained in Ms Loudon’s report.  

Decision

[18]      For the reasons given above, we refuse the appeal and remit the cause to Aberdeen Sheriff Court to proceed as accords.  We continue any questions relating to expenses, the order for interim interdict granted by this court, and the children’s passports.